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HomeMy WebLinkAbout1983-0092.Tayler.85-07-24IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OPSEU (CC. Tayler) and Grievor The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer R.J. Roberts J. Smith D.A. Wallace Vice-Chairman Member Member For the Griever: D.V. MacDonald, Counsel Jack, Harris, Anand Barristers and Solicitors For the Employer: A.P. Magee, Staff Relations Co-ordinator Human Resources Branch Ministry of Transportaticn and Communications HeariflgZ May 21, 1985 -2- INTERIM AWARD At the outset of the hearing in this matter, which ij a job competition grievance, the parties notified the Board that only one of three successful incumbents had been advised that his rights may be adversely affected by the outcome of this proceeding. The Union took the position that the other two incumbents should have been similarly notified, because there was m guarantee that the fairness of the competition would not become an issue. It was common ground between the parties that if the fairness of the selection procedure did become an issue, one of the options open to .the Board would be to require a re-running of the competition. Such a result would, of course, affect the rights of all three incumbents. The Ministry submitted that it was not open to.the Union to raise the iaue of the fairness of the selection procedure because the very selection procedure which &d been used in thii case already had been reviewed by the Board and found to be fair in Cermaniuk and Minisay of Transportation and Communications (1983), G.S.B. #l/83 (Draper). In that case, it Was argued, inter 5 alia, on behalf of the griever, -- “That the competition was faulty because the criteria applied and the questims based on them are not relevant to the requirements of the positions to be filled and that in a proper competition he would have been a successful applicant.” @. at p. 5. The Board concluded, “We find nothing objectionable about the selection process as designed and carried out.” Id. at p. 6. Accordingly, the Ministry submitted, the Union was estopped from raising the self-same issue in the presenpproceeding. This left as the only issue to be raised by the Unicn in the present proceeding, it was submitted, the question whether the grievor was relatively equal to .the only incumbent who -3- had less seniority than him, Mr. Sawiak. As a result, Mr. Sawiak was the only incumbent to be given notice of his right to attend this proceeding. The estoppel argument which was made by the Ministry was based upon the decision of the Grievance Settlement Board in Re Battams and Ministry of Transportation and Communications (1982), C.S.B. #545/81 (Delisle). In that case, the grievor, who was classified as a Draftsman 1, sought to be reclassified as a Draftsman 2 by showing that he performed the identical duties to Mr. D. Stewart, who, in a previous award of the Grievance Settlement Board, Re Stewart and Ministry of Transportaticn and Communications, G.S.B. #222/78 (Brent), was found to be entitled to be classified as a Draftsman 2. The Ministry indicated that it intended to re-litigate the question whether a person performing the same duties as Mr. Stewart deserved the classification of Draftrnian 2. Reference was made to certain alleged mistakes which may have been made in the presentation of the Stewart case. A unanimous Board denied this opportunity to the Ministry. The Board said, in pertinent part: But the principle of finality must apply to these hearings just as it applies in civil and criminal litigation. The employer here seeks to resist the grievance on the basis that the earlier award is inaccurate, that Stewart does not deserve to be classified as a draftsman II. That issue has been litigated once between these parties and the employer must be foreclosed from re-opening to ensure that the parties can bring some certainty to the ordering of their affairs. The principle which underlies this award may be likened to the doctrine of issue estoppel recognized by our courts civil and criminal . . . . In this case the employer is estopped from raising the issue of how the jobs performed by both Stewart and Battams deserve to be classified. As presented to us in the instant case, that is the very issue which was decided between the parties in the Stewart case. Id. at pp. 4-6. -4- Because the Battams award relied upon decisions from the courts applying the doctrine of issue estoppel, it was possible to interpret it as approving wholesale application of the doctrine of issue estoppel to arbitration cases before this Board. If that were, in fa&, the case, the position that the Ministry took at the outset of this case would have been well-founded. However, when Battams was judicially .reviewed, the Divisional Court made it clear that the doctrine of issue estoppel could not be imported into arbitral jurisprudence on this kind of a wholesale basis. The main reason why thii was so, the court indicated, was that strictly speaking, the parties in a subsequent arbitration LIsuaily are not identical. Speaking fa the court, Osler J. said: The Board’s refusal to permit the employer to demonstrate that Stewart was incorrectly classified is based upon the principle that an issue once litigated to final decision between the same parties may not be re-opened, a principle likened to the doctrine of issue estoppel. Stiictly s.Aking, t& parties are not identical. True, the , Ontario Public Service Employees Union, which processed the grievance and resisted this applicatim for judicial review, has a vital part to play and an interest in all the grievances carried forward to the Board under the statute. In processing each individual grievance, however, apart from any that might be described as policy grievances, there are one or more grievors and a department of government who are before the Board and who are set out in the style of cause adopted by the Board as the parties, grievor and employer respectively. Although the aFplicatim of the doctrine in criminal matters may not be free from doubt, issue estoppel in civil disputes has application to the parties to the dispute in which the issue was resolved, or their privies. Its strict application, therefore, would not prevent the re-opening of the question of the Stewart dassifi- cation for the purpose of the grievance arbitration presently under review. . . . (Id. at pp. 6-7) (emphasis in original) The Divisional Court nevertheless upheld the Battams award on the ground that it was for the Board to adopt the view, as a matter of policy, “that employees -5- in the same ministry doing identical work should be treated identically in the matter of classification.” Id. at p. 8. Subsequent decisions of the Grievance Settlement Board might be construed as indicating a degree of inconsistency with respect to application of the doctrine of issue estoppel. For example, in Re Tkach and Ministry of Correctional Services (19841, G.S.B. #479/82, etc. (Verity), there was some indicatim of approval of application of thls doctrine; however, it was concluded that the doctrine could not be applied to require the Board to carry into its determination a finding which was made in a previous award. In Re Vig and Minlsiry of Energy (19851, G.S.B. #W/83 (Samuels), the Board rejected application of the doctrine of issue estoppel and reaffirmed its usual view that it possessed the power to overturn the previous award ‘If we found the decision to be ‘manifest ly wrong’.” &I. at p. 4. The Board!ls of the view that in cases in which the parties are not identical, it is inappropriate to apply the doctrine of issue estoppel. It seems to us that the approach adopted in the u case, e, ls the proper approach to take with respect to previous awards in which one or more identical issues might have been considered and determined. That approach is to honour a previous determination unless it is shown to be manifestly wrong. In this sense, the prior determination does not bar the re-litigation of an issue; it merely places upon the party which contests the previous determination a heavy burden. Accordingly, in the present case, the Union is not barred from raising and re-litigating the issue of the fairness of the selection procedure. Here, the grievor is not the same as the grievor in Germaniuk, -. The burden upon :, -6- the Uniar, however, will be the heavy one of showing that the prior finding that the selection process as designed and carried out was not objectionable, was manifestly wrong. If the Union were to be successful in sllstaining this heavy burden, it would, in fact, be open to the Board to require the competition to be re-run. This remedy would have an impact upon all three incumbents, and not just Mr. Sawiak. Accordingly, notice and opportunity to participate in these proceedings should have bean given to all three incumbents. In the result, it is hereby ordered that prior to the resumption of the hearing in this matter, timely and proper n6tice of their right to participate be given to alI three incumbents. DATED at London, Ontario this 24th day of July, 1985. * R.J. Roberts, Vice Chairman -- e J. Smith, Member D.A. Wallace, Member *